In an unpublished opinion issued October 22, 2018, Tennis Club Preservation Society v. City of Palm Springs, Case No. E068896, the California Court of Appeal affirmed the trial court’s decision dismissing the Tennis Club Preservation Society’s (Petitioner’s) petition seeking to enjoin the City of Palm Springs (City) from issuing building and other permits for Phase III of a proposed development (Project) by real parties in interest John Wessman and Baristo Group, LLC (collectively, Developer). In summary, the court determined:

The doctrine of laches prevents the Petitioner’s claim that the Phase III plan violates the mitigated negative declaration’s (MND’s) mitigation measures because the Phase III plan conforms with the plans approved 15 years prior.

The Project is not a phased development for the purposes of a local ordinance such that planning commission review and approval would be required prior to further development.

Background for Appeal

On September 25, 2003, the Developer submitted an initial application for a planned development district (PDD), consisting of 12 two-story dwellings. Following community meetings, the application was revised such that “a two-story unit located in the northern section of the [P]roject and adjacent to existing single-story residential has been replaced with a single-story unit.”

On October 21, 2003, the City’s planning commission recommended adopting the initial study (IS) and MND. On October 24, 2003, the IS and MND were made available to the public. The project was described as consisting of 13 buildings: “twelve (12) two-story triplex buildings and one (1) duplex building for a total of 38 condominium buildings.” Following a noticed public hearing on November 26, 2003, the planning commission voted to recommend the Project and approval of the IS/MND. On December 17, 2003, the City approved the Project and ordered the MND filed. As approved, the Project included two entitlements: the PDD and the tentative tract map (TTM).

By 2005, construction on Phases I and II had been completed (for 27 of 38 units), while construction on Phase III had not yet begun. In July 2016, the Developer submitted plans to the City for construction of Phase III. City staff reviewed the plans, found them to conform to those previously approved by the City in 2003, and approved them. The Petitioner filed the instant action alleging violations of the MND and certain applicable Palm Springs Municipal Code (PSMC) sections and sought to enjoin the City’s issuance of required building permits for Phase III. The trial court denied the petition, and the Petitioner made a timely appeal.

Compliance With Mandatory Mitigation Measures

The Petitioner argued that Phase III of the Project failed to comply with a mandatory mitigation measure in the MND that required reducing the height of a building on the northern edge of the project area to a single story. Specifically, the Petitioner argued that the Developer did not reduce the height of the building on the northern border, but rather added a second single-story building. The court acknowledged that an additional building had been added, but found that this addition was approved in December 2003 with the IS/MND and that the Petitioner’s challenge was time-barred.

When the Developer submitted the final plans for Phase III in 2016, the City’s planning staff concluded that all of the buildings were substantially in the same shape, form, height, and location as in the previously approved 2003 plans.

The court found that the Phase III plans complied with the IS/MND because the final plans conformed to the previously approved 2003 plans and that the Petitioner’s challenge to the addition of the single-story building on the northern border was time barred. According to the court, “the time to challenge [the addition] was in 2003.”

Re-Review and Re-Approval by the Planning Commission

The Petitioner argued that the City could not issue construction permits for Phase III without review and approval by the planning commission, because PSMC Section 94.03.00(I)(2) provides that phased planned developments that cease construction for a period of two years or more require planning commission review and approval prior to further development.

The City argued that the PSMC section did not apply to the Project, because the Project was not a phased planned development despite repeated references in the record by the Developer describing the Project as “phased” and seeking the City’s approval of a “phased project.” The Developer contended, and the court agreed, that the references to “phases” referred to the phasing of the TTM and not the PDD. As the Developer argued, the purpose of the PDD is to define the specific development standards for the Project’s buildings, while the purpose of the TTM is to define the Project’s division of land and improvements. Based on the record, the court found that the PDD was neither approved nor required to be built in phases, and thus PSMC Section 94.03.00(I)(2) did not apply to the Project.

Disposition

The Court of Appeal affirmed the trial court’s judgment and awarded the City its costs on appeal.

[i]California court decisions on California Environmental Quality Act (CEQA) related cases can impact business not only in California, but more broadly in other US jurisdictions (e.g., under the US National Environmental Policy Act (NEPA), though statutory provisions may differ). Latham’s case summary series provides a comprehensive archive of both published and unpublished cases, in order to track judicial interpretations of CEQA and new legal developments. Unpublished or “non-citable” opinions are opinions that are not certified for publication in Official Reports and generally may not be cited or relied on by other courts or parties in any filing with California courts in other court proceedings. (see California Rules of Court, rule 8.1115).

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